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Wynne: Roads? Where We're Going We Don't Need Roads

Wynne: Roads? Where We're Going We Don't Need Roads

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In Mavrix Photo, Inc. v. Brand Technologies, Inc., the United States Court of Appeals for the Ninth Circuit held that a non-resident defendant had sufficient minimum contacts with California to be haled into its courts, based upon the defendant’s commercial benefit from forum-specific, third-party advertisements hosted on the defendant’s otherwise passive website. Since Zippo Mfg. Co. v. Zippo Dot Com, Inc. in 1997, almost every United States circuit court has adopted a “sliding-scale interactivity test.” These courts focus on a website’s interactivity to determine whether a website has jurisdictionally sufficient contacts with a forum. However, what was meant to be the new, predictable jurisdictional standard for the Internet soon proved inconsistent, irrelevant, and outdated. This Comment argues that, while Mavrix departed from Zippo by paying little attention to the interactivity of the defendant’s website, it was correctly decided because the court looked beyond the medium in which the harm occurred to the defendant’s actual, purposeful availment of the forum. This Comment concludes that the Internet does not require a unique jurisdictional test; the most predictable and useful method for determining Internet-based jurisdiction is a target-based test developed before the Internet even existed.
In Mavrix Photo, Inc. v. Brand Technologies, Inc., the United States Court of Appeals for the Ninth Circuit held that a non-resident defendant had sufficient minimum contacts with California to be haled into its courts, based upon the defendant’s commercial benefit from forum-specific, third-party advertisements hosted on the defendant’s otherwise passive website. Since Zippo Mfg. Co. v. Zippo Dot Com, Inc. in 1997, almost every United States circuit court has adopted a “sliding-scale interactivity test.” These courts focus on a website’s interactivity to determine whether a website has jurisdictionally sufficient contacts with a forum. However, what was meant to be the new, predictable jurisdictional standard for the Internet soon proved inconsistent, irrelevant, and outdated. This Comment argues that, while Mavrix departed from Zippo by paying little attention to the interactivity of the defendant’s website, it was correctly decided because the court looked beyond the medium in which the harm occurred to the defendant’s actual, purposeful availment of the forum. This Comment concludes that the Internet does not require a unique jurisdictional test; the most predictable and useful method for determining Internet-based jurisdiction is a target-based test developed before the Internet even existed.

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Categories:Types, Business/Law
Published by: New England Law Review on Apr 17, 2013
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477
 
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Roads? Where We’re Going We Don’tNeed Roads: Back to the Future and theNinth Circuit’s Use of Traditional Jurisdiction on the InternetSuperhighway
W
ILLIAM
H.
 
W
YNNE
 
A
BSTRACT
 
In
 Mavrix Photo, Inc. v. Brand Technologies, Inc.
 , the United States Courtof Appeals for the Ninth Circuit held that a non-resident defendant hadsufficient minimum contacts with California to be haled into its courts, based upon the defendant’s commercial benefit from forum-specific, third-party advertisements hosted on the defendant’s otherwise passive website.Since
Zippo Mfg. Co. v. Zippo Dot Com, Inc.
in 1997, almost every UnitedStates circuit court has adopted a “sliding-scale interactivity test.” Thesecourts focus on a website’s interactivity to determine whether a website has jurisdictionally sufficient contacts with a forum. However, what was meantto be the new, predictable jurisdictional standard for the Internet soonproved inconsistent, irrelevant, and outdated. This Comment argues that,while
 Mavrix
departed from
Zippo
by paying little attention to theinteractivity of the defendant’s website, it was correctly decided becausethe court looked beyond the medium in which the harm occurred to thedefendant’s actual, purposeful availment of the forum. This Commentconcludes that the Internet does not require a unique jurisdictional test; themost predictable and useful method for determining Internet-based jurisdiction is a target-based test developed before the Internet evenexisted.
 
Candidate for Juris Doctor, New England Law | Boston (2013). B.A., Political Science,
cumlaude
 , Providence College (2010). I would like to thank my friends and family for all of theirlove and support during the writing process. I would also like to thank Professor JordanSinger for doing the impossible, making Civil Procedure interesting. The following article ismy humble effort at doing the same.
 
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New England Law Review
v. 47 | 477
I
NTRODUCTION
 
ob right clicks, drags, and pastes.
1
These three seemingly innocuousactions gave the world instant access to that content.
2
With anInternet connection and a click of a mouse an individual has theworld at his fingertips.
3
Arguably the most significant societal change inthe twenty-first century is the widespread, pervasive use of the WorldWide Web in our daily lives.
4
Universal Internet accessibility has been thecatalyst for monumental innovations in academia, business, entertainment,and most recently, political regime change.
5
 For all of this change and ability, society must remember the advicegiven to a folk hero who was no stranger to surfing the web: “With greatpower comes great responsibility.”
6
In the Internet context, this translatesto a legal responsibility for how a person’s web activity affects others.
7
Thesame Internet universality that has driven change and toppleddictatorships also poses the ultimate legal question to individuals and businesses that use the Internet: where can I be sued?
8
 This question is not exclusive to the Internet. Laypersons and attorneysalike have asked it throughout America’s history.
9
Since 1877, theinterpretation and expansion of personal jurisdiction—where an individualor business can be sued—has been the subject of many Supreme Courtdecisions.
10
The creation of the Internet provided this continually
1
 
See
Ryan Brown,
How Do I Post Content from Another Website?
 , H
OW
D
O
I
 
.
 
.
 
. ,http://howdoi.posterous.com/how-do-i-use-the-posterous-bookmarklet (last visited Feb. 25,2013).
2
 
Id.
3
Marshall Brain & Tracy V. West,
How WiFi Works
 , H
OW
S
TUFF
W
ORKS
 ,http://www.howstuffworks.com/wireless-network.htm (last visited Feb. 25, 2013).
4
Fred Galves,
Virtual Justice As Reality: Making the Resolution of E-Commerce Disputes MoreConvenient, Legitimate, Efficient, and Secure
 , 2009 U.
 
I
LL
.
 
 J.L.
 
T
ECH
.
 
&
 
P
OL
Y
1, 1 (2009).
5
 
See generally
Barry M. Leiner et al.,
Histories of the Internet
 , I
NTERNET
S
OCIETY
 ,http://www.internetsociety.org/internet/what-internet/history-internet/brief-history-internet(last visited Apr. 7, 2013).
6
 
See
 
 Memorable Quotes for Spider-Man
 , I
NTERNET
M
OVIE
D
ATABASE
 ,http://www.imdb.com/title/tt0145487/quotes (last visited Feb. 27, 2013).
7
 
See
Allyson W. Haynes,
The Short Arm of the Law: Simplifying Personal Jurisdiction overVirtually Present Defendants
 , 64 U.
 
M
IAMI
L.
 
R
EV
. 133, 150-51 (2009).
8
 
See
Brian D. Boone,
Bullseye!: Why a “Targeting” Approach to Personal Jurisdiction in the E-Commerce Context Makes Sense Internationally
 , 20
 
E
MORY
I
NT
L
L.
 
R
EV
. 241, 241-42 (2006).
9
 
See
Haynes,
supra
note 7, at 150.
10
 
See, e.g.
 , Asahi Metal Indus. Co. v. Superior Court of Cal., 480 U.S. 102, 104 (1987)(holding that, in balancing the heavy burden on a foreign defendant with minimal interests ofthe plaintiff and the forum state, exercising personal jurisdiction over the defendant would be
R
 
 
477
 
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2012
Traditional Jurisdiction on the Internet Superhighway
479
expanding doctrine with a new medium of application, the extent of whichfew at the time were likely aware.
11
The leading decision by the UnitedStates. District Court for the Western District of Pennsylvania,
Zippo Manufacturing Co. v. Zippo Dot Com, Inc.
 , created the first test of Internet- based personal jurisdiction by using a “sliding scale” test of a website’scommercial interactivity to determine jurisdiction.
12
Since
Zippo
manycourts have adopted this “sliding scale” model.
13
The Ninth Circuitoriginally adopted this model.
14
In
 Mavrix Photo, Inc. v. Zippo Dot Com, Inc.
 ,however, the Ninth Circuit paid little attention to the interactivity of thewebsite itself, instead focusing on the forum-specific actions of the party.
15
 This Comment argues that the court in
 Mavrix
correctly departed fromthe established website-interactivity test because the court’s use of thecommercial benefits and effects test of jurisdictional analysis expanded itsinterpretation of “expressly aimed at the forum state.”
16
This expanded
unreasonable and unfair, even if the defendant was aware that the goods were placed in thestream of commerce); Burger King Corp. v. Rudzewicz, 471 U.S. 462, 478-81(1985) (extendingpersonal jurisdiction over a foreign defendant that conducted a substantial and continuingrelationship with the forum state through a contractual agreement mentioning course ofdealings and giving notice that the defendant might be subject to suit in the forum); Keeton v.Hustler Magazine, Inc., 465 U.S. 770, 781 (1984) (determining that personal jurisdiction can beexercised over a foreign defendant that produces a national publication aimed at a nationwideaudience); Calder v. Jones, 465 U.S. 783 (1984) (holding that personal jurisdiction over aforeign defendant is proper when the out-of-state conduct targets the forum state as a focalpoint and intentionally causes harm to a resident of that forum state); World-WideVolkswagen Corp. v. Woodson, 444 U.S. 286, 298 (1980) (refusing to extend personal jurisdiction to a corporation when the plaintiff brings the product into a forum state where thecorporation has no contacts); Hanson v. Denckla, 357 U.S. 235, 253 (1958) (holding thatpersonal jurisdiction over a nonresident defendant must be based on continuous andsystematic activity, amounting to more than mere unilateral activity, in order to satisfy theminimum contacts requirement); Int’l Shoe Co. v. Washington, 326 U.S. 310, 320 (1945)(determining that to establish a presence in a state, for personal jurisdiction purposes, theactivities of a corporation must be continuous and systematic for it to purposely avail itself ofthe benefits and protections of that forum state); Pennoyer v. Neff, 95 U.S. 714, 734-35 (1877)(holding that, for purposes of personal jurisdiction, the authority of the court to pass judgment over the defendant requires that service of process within the state or thedefendant’s voluntary appearance brings the defendant within jurisdiction of that court).
11
 
See
Catherine Ross Dunham,
Zippo-ing the Wrong Way: How the Internet Has Misdirectedthe Federal Courts in Their Personal Jurisdiction Analysis
 , 43 U.S.F.
 
L.
 
R
EV
. 559, 565-66 (2009).
12
Zippo Mfg. Co. v. Zippo Dot Com, Inc., 952 F. Supp. 1119, 1124 (W.D. Pa. 1997).
13
 
See
Dunham,
supra
note 11, at 559 & n.2;
see
 
also
A. Benjamin Spencer,
 Jurisdiction and theInternet: Returning to Traditional Principles to Analyze Network-Mediated Contacts
 , 2006
 
U.
 
I
LL
.
 
L.
 
R
EV
. 71, 80-85 (2006).
14
 
See, e.g.
 , Cybersell, Inc. v. Cybersell Inc., 130 F.3d 414, 418-19 (9th Cir. 1997).
15
 
See
Mavrix Photo, Inc. v. Brand Techs., Inc., 647 F.3d 1218, 1227-31 (9th Cir. 2011).
16
 
See
 
id.
 

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